adventures, until they reached the brook. Neither of the boys were
thirsty, not even Rollo; but still he took a drink from the brook, for
the sake of using the dipper. He then amused himself, for some time, in
trying to scoop up skippers and roundabouts, but without much success.
The skippers and roundabouts have both been mentioned before. The latter
were a sort of bugs, which had a remarkable power of whirling round and
round with the greatest rapidity, upon the surface of the water. While
Rollo was endeavoring to entrap some of these animals, the other boys
were picking up pebbles, or gathering flowers, until at length their
attention was suddenly arrested by a loud and long exclamation of
surprise and pleasure from Rollo.
"What?" said Henry and James, looking towards Rollo.
They saw that he was standing at the edge of the water, gazing eagerly
into his dipper.
"What is it?" said the boys, running towards him.
"I have caught a little fish," said Rollo.
True enough, Rollo had caught a little fish. It was very small, and, as
it had been swimming about there, Rollo had, probably more by accident
than skill, got him into his dipper, and there he was safely imprisoned.
"O, what a splendid little fellow!" said Henry, crowding his head in
between Rollo's and James's, over the dipper. "See his fins!"
"Yes," said Rollo. "It is a trout,--a little trout."
"See his eyes!" said James. "How he swims about! What are you going to
do with him, Rollo?"
"O, I shall carry him home, and keep him."
"O, you can't keep him," said James; "you have not got any pond."
"Never mind," said Rollo, "I can keep him in a bowl in the house."
"What shall you give him to eat?" said James.
"Eat! fishes never eat; they only drink. I shall give him fresh water
every day, and that will keep him alive."
"They do eat, too," said James. "They eat bait off of the hooks when we
fish for them."
Rollo had forgotten this fact when he said that fishes never ate; and,
having nothing to say in reply to it, now, he was silent, and only
looked at his fish.
"O, I wish I had a fish!" said Henry. "If I had kept my dipper, now, I
might have had one."
"I don't believe you could have caught one," said Rollo.
"Yes, I could; and I believe I will take my dipper, after all, and catch
me a fish."
"No," said Rollo, "you lent me the dipper, and I lent you my basket
instead; and now I must keep it till we get home."
"No," said Henry, "it is _my_ dipper, and I only lent it to you; and I
have a right to it whenever I want it. So you must give it to me."
But Rollo was very far from being convinced that he ought to give back
the dipper then. He had borrowed it, he said, for the whole expedition,
and he had a right to keep it till he got home. Besides, he had a fish
in it, and there was nothing that he could do with him, if Henry took
away the dipper.
But Henry said he did not think of catching a little fish in his dipper,
when he lent it to Rollo. If he had, he should not have lent it to him.
He only lent it to him to get raspberries in. But Rollo insisted that he
had lent it to him for the whole expedition, and to put any thing in it
he pleased.
After some time spent in this discussion, Rollo finally yielded. He was,
in fact, somewhat ashamed of the part he had taken in the former
difficulty, and had secretly resolved to be more good-natured and
yielding in future. So he gave the dipper back to Henry.
Before he did this, however, Henry said that he would be very careful
not to lose Rollo's fish.
"I will only dip the dipper in again," said he, "very carefully, to
catch another fish, without letting yours get out. Then we can carry
both to your house, and put yours in the bowl; and then I can carry mine
home in the dipper."
So Rollo gave the dipper back to Henry, though very reluctantly.
Henry carried it carefully down to the bank of the brook. He stood upon
a little sloping shore of sand and pebbles, and began to watch for the
little minnows which were swimming about in the deep places. He immersed
his dipper partially in the water, being very careful not to plunge it
in entirely, lest Rollo's fish should escape. Whenever he made an
attempt, however, to catch a fish, he was obliged to plunge it in; but
he did it very quick, so as not to give the prisoner, already taken,
time to escape.
At last, a fish, larger than any he had seen, came moving slowly along,
out from a deep place under a large log, which lay imbedded in the bank.
Henry made a sudden plunge after him. He drew up his dipper again,
confident that he had caught him; but, on looking into the dipper, no
fish was to be seen. The bird in the hand, and the bird in the bush,
were both gone.
The boys tried for a long time, in vain, to catch another fish. Rollo
was sadly disappointed at the loss of the one he had caught, but there
was now no help for it; and so they all slowly returned home together.
THE BAILMENT CASES.
As the boys were slowly coming up the lane, towards the house, they saw
Mary and Lucy in the garden. They went round into the garden to see what
they were doing.
They found them seated upon a bench in a pleasant part of the garden; it
was the same bench were Rollo had once undertaken to establish a hive of
bees. Mary was teaching Lucy how to draw pictures upon lilac leaves, and
other leaves which they gathered, here and there, in the garden.
The boys came up and asked to see what the girls were doing. The girls
did not say to them, as girls sometimes do in such cases, 'It is none of
your concern,--you go off out of the garden, we don't want you here.'
They very politely showed them their leaf sketches,--and the boys, at
the same time, with equal politeness, offered them some of their
raspberries. In the course of the conversation, as they sat and stood
there, Rollo said to his sister,
"Henry lost my fish, Mary, and ought he not to pay me?"
"Your fish?" asked Mary.
"Yes," said Rollo, "I caught a fish in a dipper."
"And how came Henry to have it?"
"O, I let him have it, to catch another. He made me."
Henry had some secret feeling that he had not done quite right in the
transaction, though he did not know exactly how he had done wrong. He
did not make any reply to Rollo's charge, but stood back, looking
somewhat confused.
"Ought he not to pay me?" repeated Rollo.
"It seems to be a case of bailment," said Mary.
"O yes," said Rollo, who now recollected his father's conversation on
that subject some days before.
"And so, you know, the question," continued Mary, "whether he ought to
pay or not, depends upon circumstances."
"Well," said Rollo, who began to recall to mind the principles which
his father had laid down upon the subject, "it was for _his_ benefit,
not _mine_, and so he ought to pay."
All this conversation about bailment, and about its being for his
benefit, not Rollo's, was entirely unintelligible to Henry, who had
never studied the law of bailment at all. He looked first at Mary, and
then at Rollo, and finally said,
"I don't understand what you mean."
So Mary explained to him what her father had said. She told him, first,
that whenever one boy intrusted his property of any kind to the hands of
another boy, it was a _bailment_; and that the question whether the one
who took the thing ought to pay for it, if it was lost, depended upon
the degree of care he took of it, considered in connection with the
question, whether the bailment was for the benefit of the bailor, or the
bailee.
"What is _bailor_ and the _bailee_?" said Henry.
"Why, Rollo bailed you his fish," said Mary. "Rollo was bailor, and you
bailee."
"No," said Henry, "he only gave me back my dipper, and the fish was in
it."
Mary asked for an explanation of this, and the boys related all the
circumstances. Mary said it was an intricate case.
"I don't understand it exactly," said Mary. "You returned him his
property which you had borrowed, and at the same time put into his hands
some property of your own. I don't know whether it ought to be
considered as only giving him back his dipper, or bailing him the fish."
"I did not want the _fish_," said Henry.
"No," said Mary. "It is a knotty case. Let us go and ask father about
it."
"O, _I_ don't want to go," said Henry.
"Yes, I would," said Mary. "I'll be your lawyer, and manage your side of
the question for you; and we will get a regular decision."
"Well," said Henry, reluctantly. And all the children followed Mary and
Lucy towards the house.
They found Rollo's father in his room, examining some maps and plans
which were spread out upon the table before him. When he saw the
children coming in, he asked Mary, who was foremost, what they wanted.
She said they had a law question, which they wanted him to decide.
"A law question?" said he.
"Yes," she replied; "a case of bailment."
"O, very well; walk in," said he.
There was a sofa at one side of the room, and he seated the children all
there, while he drew up his arm-chair directly before them. He then told
them to proceed. Rollo first told the whole story, closing his statement
by saying,
"And so I let him have my fish; and that was a bailment, and it was not
for my benefit, but his, and so he ought to have taken very especial
care of it. But he did not, and lost it, and so he ought to pay."
"But we maintain," said Mary, "that the _fish_ was not bailed to Henry
at all. Rollo only gave him back the dipper, and, though the fish was in
it, still the fish did not do Henry any good, and so it was not for his
benefit."
"It seems to be rather an intricate case," said her father, smiling.
Henry looked rather sober and anxious. The proceedings seemed to him to
be a very serious business.
However, Rollo's father spoke to him in a very kind and good-humored
tone, so that, before long, he began to feel at his ease. After hearing
a full statement of the case, and all the arguments which the children
had to offer on one side or the other, Rollo's father began to give his
decision, as follows:--
"I think that Rollo's giving Henry the dipper, with the fish in it, was
clearly a bailment of the fish; that is, it was an intrusting of his
property to Henry's care. It is clear also that Henry took pretty good
care of it. He tried to avoid losing it. He took as much care of it,
perhaps, as he would have done of a fish of his own. Still, he did not
take _very extraordinary_ or special care of it. The loss was not owing
to _inevitable_ accident. If the bailment was for Rollo's benefit, the
care he took was sufficient to save him from being liable; but, if it
was for his own benefit, then all he did was at his own risk; and the
loss ought to be his loss, and he ought to pay for it."
"But I don't see," said Mary, "that he was to blame in either case."
"O, no," said his father; "he was not to blame for losing the fish,
perhaps. That is not the point in these cases. It is not a question of
who is to blame, but who ought to bear a loss, for which perhaps nobody
is to blame.
"And you see," he continued, "that it is reasonable that the loss should
be borne by the person who was to have derived benefit from the risk. If
the risk was run for Henry's benefit, then he ought to bear the loss;
which he would do by making Rollo compensation. If the risk was run for
Rollo's benefit, then Rollo ought to bear the loss himself."
"Yes, sir," said Rollo; "and it certainly was for Henry's benefit, for
he was trying to catch another fish for himself,--not for me. I had no
advantage in it."
"That is not so certain," replied his father. "It depends altogether
upon the question, who had a right to the dipper at that time. If Henry
had a right to the dipper, then he might have even poured out the water,
fish and all; or he might have kept the fish in, to accommodate Rollo.
On the other hand, if Rollo had a right to the dipper then, and he let
Henry have it, as a favor to him, then, in that case, the bailment was
for Henry's benefit."
"Well, sir," said Henry, "I had a right to the dipper, for it was mine;
and so it was for his benefit, and I ought not to pay."
"No, sir," said Rollo; "he had let me have it, and I let him have my
basket."
"I only _lent_ it to him," said Henry.
"But you lent it to me for the whole walk," said Rollo, turning round to
Henry.
"You must only speak to _me_," said his father. "In all debates and
arguments, always speak to the one who is presiding."
"Well, sir," said Rollo, turning back to his father, again, "he lent it
to me for the whole walk, and so I don't think he had any right to take
it back again."
"That is coming to the point exactly," said his father. "It all depends
upon that,--whether Henry had a right to reclaim his dipper at that
time, after only lending it to Rollo. And that, you see, is another
bailment case. Henry bailed Rollo the dipper. This shows the truth of
what I said before, that a great many of the disputes among boys arise
from cases of bailment. This seems to be a sort of doubled and twisted
case. And it all hinges on the question whether Henry or Rollo had the
right to the dipper at the time when Henry took it. For, as I have
already explained, if _Henry_ had a right to it, then his keeping
Rollo's fish in it was for Rollo's advantage, and Rollo ought to bear
the loss. But if _Rollo_ had a right to keep the dipper longer, then he
bailed the fish to him, in order to be able to let him have the dipper,
for he could not let him have the one without the other; and so it was
for Henry's benefit; and, as the loss was not from _inevitable_
accident, Henry ought to bear it."
"Well, sir, and now please to tell us," said Mary, "who had the right to
the dipper."
"Rollo," said her father.
"Rollo!" exclaimed several voices.
"Yes," replied Rollo's father. "There is a principle in the law of
bailment which I did not explain to you the other day. It is this:
Whenever a person bails a thing to another person, for a particular
purpose, and receives a compensation for it, the bailor has no right to
take it back again from the bailee, until a fair opportunity has been
allowed to accomplish that purpose. For instance, if I go and hire a
horse of a man to make a journey, I have a right to keep the horse
until the journey is ended. If the owner of the horse meets me on the
road, fifty miles from home, it is not reasonable, you see, that he
should have the right to take the horse away from me there, on the
ground that it is his horse, and that he has a right to him wherever he
finds him. So, if one boy lends another his knife to make a whistle
with, he ought not to take it away again, when the boy has got his
whistle half done, and so make him lose all his labor."
"Why, it seems to me he ought to give it back to him," said Rollo, "if
it is his knife, whenever he wants it."
"Yes," replied his father, "he ought to give it up, no doubt, if the
owner claims it; and yet perhaps the owner might do wrong in claiming
it. Though I am not certain, after all, how it is in case a thing is
lent gratuitously."
"What is _gratuitously_?" said Rollo.
"Why, for nothing; without any pay. Perhaps the bailor _has_ a right to
claim his property again, at any time, if it is bailed gratuitously,
though I am not certain. I will ask some lawyer when I have an
opportunity. But when a thing is let for pay, or bailed on contract in
any way, I am sure the bailor ought to leave it in the hands of the
bailee, until the purpose is accomplished; or, at least, until there has
been a fair opportunity to accomplish it.
"Wherefore I decide that, as Henry intended to let Rollo have the dipper
for the whole expedition, and as he took Rollo's basket, and Rollo
agreed to let him have some drink, as conditions, therefore, he ought
not to have reclaimed the dipper. Since he did reclaim it, Rollo did
perfectly right to give it up, fish and all; and as he did so, it was a
bailment for the benefit of the bailee, that is, Henry. And of course it
was at his risk, and, in strict justice, Rollo has a right to claim
compensation for the loss of his fish. But then I should hope he won't
insist upon it."
"Well, sir," said Rollo, "I don't care much about it now."
"You see, Henry," continued Rollo's father, "I haven't been talking
about this all this time on account of the value of the fish, but to
have you understand some of the principles you ought to regard, when any
other's property is in your possession. So, now, you may all go."
"Well, uncle," said James, as the children rose from their seats,
"haven't you got some great box that we can have for our cabinet?"
"Your cabinet?" asked his uncle.
"Yes, sir, we want to make a museum."
"Why, Rollo has got a cabinet. Jonas made him one."
"Yes, sir; but he wants his for himself, and we want one for our
society."
"You may have mine, now," said Rollo; "I am not going to have one alone.
I have concluded to let you have mine. Come."
So Rollo moved on, as if he wished to go. In fact, he had an instinctive
feeling that his conduct in respect to the cabinet and the society would
not bear examination, and he wanted to go.
But his father, afraid that Rollo had been doing some injustice to his
playmates, stopped the children and inquired into the case. The children
told him that they had formed a society, and had elected Jonas cabinet
keeper; and that Rollo had afterwards said he meant to be cabinet keeper
himself, and so would not let the society have his cabinet to keep
their curiosities in.
"And did he first agree that the society might have it?"
"No, sir," said Rollo, decidedly; "I did not agree to any thing about
it." He thought that this would exonerate him from all blame.
"Was not there a _tacit_ agreement?" asked his father.
"A _tacit_ agreement!" repeated Rollo. He did not know what a tacit
agreement was.
"Yes," said his father, "_tacit_ means silent; a tacit or implied
agreement is one which is made without being formally expressed in
words. If it is only understood by both parties, it is just as binding
as if it were fully expressed. For instance, if I go into a bookstore,
and ask the bookseller to put me up certain books, and take them and
carry them home, and then he charges them to me in his books, I must pay
for them: for, though I did not _say_ any thing about paying for them,
yet my actions constituted an implied agreement to pay. By going in and
getting them, under those circumstances, I, in fact, tacitly promise
that I will pay for them when the bookseller sends in his bill. A very
large portion of the agreements made among men are tacit agreements."
The children all listened very attentively, and they understood very
well what Rollo's father was saying. Rollo was considering whether there
had been a tacit agreement that the society should have the cabinet; but
he did not speak.
"Now, Rollo, did you consent to the formation of the society?"
"Yes, sir," said Henry, eagerly; "he _asked_ us all to form the
society."
"And was it the understanding that the museum was to be kept in the
cabinet that Jonas made?"
"Yes, sir," said Rollo, rather faintly.
"Then, it seems to me that there was a tacit agreement on your part,
that if the children would form the society and help you make the
collection, you would submit to whatever arrangements they might make
about the officers and the charge of the cabinet. You, in fact, _bailed_
the cabinet to the society."
"Yes, sir," said the children.
"And as the bailment was for your advantage, as well as theirs, you
ought not to have taken possession of the property again, until a fair
opportunity had been afforded to accomplish the purpose of the bailment,
that is, the collection of a cabinet by the society. So, you see, you
fell into the same fault in respect to the society, that Henry did in
regard to you in the case of the dipper."
The children were silent; but they all perceived the justice of what
Rollo's father had said.
"And the society have a claim upon you, Rollo, for compensation for the
disappointment and trouble you have caused them by taking away the
cabinet."
Rollo looked rather serious.
"O, we don't care about it," said Lucy.
"Well," said his father, "if the society release their claim upon you,
as you did yours upon Henry, very well. I hope, at all events, you will
all go on pleasantly after this."
The children then went out, and Rollo, followed by the other boys, went
to find Jonas, to tell him he might be cabinet keeper. They tried to
tell Jonas the whole story, and about Rollo's giving the fish to Henry,
and its being a bailment. But they could not make Jonas understand it
very well. He said he did not know any thing about bailment, except
bailing out boats--he had never heard of bailing fishes.
THE CURIOSITIES.
Jonas accepted the office of cabinet keeper. He inquired particularly of
the children about the meeting of the society, and, as they stated to
him the facts, he perceived that Rollo had been a good deal disappointed
at not having been chosen to any office. Jonas was sorry himself that
Rollo could not have had some special charge, as it was his plan at the
beginning, and the others had only joined it at his invitation. When he
observed, also, how good-naturedly Rollo acquiesced,--for he did at last
acquiesce very good-naturedly indeed,--he was the more sorry; and so he
proposed to Rollo that he should be _assistant_ cabinet keeper.
"I shall want an assistant," said Jonas, "for I have not time to attend
to the business much; I can give you directions, and then you can
arrange the curiosities accordingly; and you can help me when I am at
work there."
Rollo liked this plan very much; and so Jonas said that he might act as
assistant cabinet keeper until the next meeting of the society, and then
he would propose to them to choose him regularly. He told Mary of this
plan, and she liked it very much indeed.
The children had various plans for collecting curiosities. They had
meetings of the society once a week, when they all came into the play
room, bringing in with them the articles which they had found or
prepared. These articles were there exhibited and admired by all the
members, and then were put upon the great work-bench, under the care of
the assistant cabinet keeper. They remained there until Jonas had time
to look them over, and determine how to arrange them. Then he and Rollo
put them up in the cabinet, in good order.
Mary did not collect many articles herself; but she used to tell the
children what they could get or prepare. They made some very pretty
collections of dried plants at her suggestion. They would come to her,
as she sat in the house at her work, and there she would explain to
them, in detail, what to do; and then they would go away and do it,
bringing their work to her frequently as they went on. In respect to
collections of plants, she told them that botanists generally pressed
them, and then fastened them into great books, between the leaves,
arranged according to the kinds.
"But you," said she, "don't know enough of plants to arrange them in
that way,--and, besides, it would be too great an undertaking for you to
attempt to prepare a large collection. But you might make a small
collection, and select and arrange the flowers in it according to their
beauty."
Lucy said she should like to do this very much, and so Mary recommended
to her to go and get as many flowers as she could find, and press them
between the leaves of some old book which would not be injured by them.
Lucy did so. She was a week or two in getting them ready. Then she
brought them to Mary. Mary looked them over, and said that many of them
were very pretty indeed, and that she could make a very fine collection
from them.
"Now," said she, "you must have a book to keep them in."
So Mary went and got two sheets of large, light-colored wrapping paper,
and folded them again and again, until the leaves were of the right
size. Then she cut the edges.
"Now," said Mary, "I must make some false leaves."
"False leaves!" said Lucy; "what are they?"
"O, you shall see," replied Mary.
She then cut one of the leaves which she had made into narrow strips,
and put these strips between the true leaves at the back, where they
were folded, in such a manner, that, when she sewed the book, the false
leaves would be sewed in with the true. But the false leaves, being
narrow strips, only made the back thicker. They did not extend out into
the body of the book between the leaves; but Mary showed Lucy that when
she came to put in her flowers between the true leaves, it would make
the body of the book as thick as the back. They would make it thicker,
were it not for these false leaves.
"Yes," said Lucy, "I have seen false leaves in scrap books, made to
paste pictures in. I always thought that they made the leaves whole,
first, and then cut them out."
"No," said Mary, "that would be a great waste of paper. It is very easy
to make them by sewing in narrow strips."